INS Issues Guidance on Waiver of 2-Year Home Country Requirement for J-1 Physicians
Posted Oct 27, 1999

INS issued a memorandum on October 4, 1999 with new guidelines for waivers of the two-year home country requirement imposed on J-1 physicians. The Law Office of Sheela Murthy, P.C. has previously outlined other Memos and policy guidance on this issue.

As background, a person present on a J-1 visa may be subject to a requirement, based upon section 212(e) of the immigration law, that (s)he return to the home country or country of last residence for two years, or obtain a waiver of this requirement, before being eligible for H-1B status or for permanent residence. Whether a particular J-1 visa holder is subject to the requirement or not, depends upon factors such as: Whether the program received government funding, whether ones area of expertise is indicated on the skills list for the applicable country, and whether the J-1 visa was issued for graduate medical training that involves patient care.

There are a variety of methods for obtaining a waiver. For some J-1s, it may be as simple as obtaining a no objection letter from ones government. For others, including those in graduate medical training (generally medical residency) programs, it is necessary to qualify on another basis, such as a state or federal waiver program. The new guidecated in an area designated as a Health Professional Shortage Area (HPSA), except for the Department of Veterans Affairs (VA) program or, if the position for which the waiver is obtained is a research or training position, then the physician can serve in that capacity, and the location need not be in an HPSA; (d) the physician must hold H-1B status during that obligatory 3-year period, and must agree to start the waiver job within 90 days of waiver approval.

If the physician does not fulfill the three-year contract, then he or she will again be subject to the 212(e) requirement. There are exceptions for certain extenuating circumstances, however. When requesting such an exception, it is necessary to provide an employment contract with another HPSA facility (or another VA facility, if the waiver was under the VA program) for the remaining time.

While the number of waivers for state programs is limited to 20 per participating state per fiscal year, there is no numerical limit on the federal waiver program. However, such waivers are often very difficult to obtain.

The article below discusses the new Bill passed by the U.S. Congress enabling NIW approvals for medical doctors working in underserved areas who will now be eligible to file the I-485 immediately after the NIW approval but will have to wait for 5 years to obtain the green card.